Citation Nr: 0715267
Decision Date: 05/23/07 Archive Date: 06/01/07
DOCKET NO. 04-09 790 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUES
1. Whether new and material evidence has been received to
reopen the claim of service connection for an upper and lower
back disability.
2. Entitlement to service connection for an upper and lower
back disability.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
M. Scott Walker, Associate Counsel
INTRODUCTION
The veteran had active service from May 1966 to May 1968.
This case is before the Board of Veterans' Appeals (Board) on
appeal from a July 2003 rating decision by the Muskogee,
Oklahoma Regional Office (RO) of the Department of Veterans
Affairs (VA).
The issue of service connection for residuals of upper and
lower back injuries is addressed in the REMAND portion of the
decision below and is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. In May 1970, the Board denied service connection for
residuals of back injuries.
2. Evidence submitted since the Board's May 1970 decision,
by itself or when considered with previous evidence of
record, relates to an unestablished fact necessary to
substantiate the claim, and therefore raises a reasonable
possibility of substantiating the claim.
3. The VA has fulfilled its notice and duty to assist to the
appellant by obtaining and fully developing all relevant
evidence necessary for the equitable disposition of the issue
addressed in the decision portion of this action.
CONCLUSIONS OF LAW
1. The May 1970 Board decision, in which the Board denied
service connection for residuals of back injuries, is final.
38 U.S.C. § 4005(c) (1964); 38 C.F.R. §§ 3.104, 19.118,
19.153 (1970); 38 U.S.C.A. § 7104(b) (West 2002 & Supp.
2005).
2. New and material evidence has been received since the
Board's May 1970 decision; thus, the claim is reopened. 38
U.S.C.A. §§ 5108, 7104 (West 2002 & Supp. 2005); 38 C.F.R. §
3.156 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000 (VCAA)
There has been a significant change in the law with the
enactment of Veterans Claims Assistance Act of 2000(VCAA).
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West 2002 & Supp. 2005). In the instant case, regarding the
issue of new and material evidence, the appellant's claim is
being granted to the extent that it is being reopened. As
such, any deficiencies with regard to VCAA are harmless and
non-prejudicial.
Evidence and Background
In January 1969, the veteran filed a claim for service
connection for an upper back injury and a lower back injury.
A review of his service medical records reveals several
documented instances of complaints of, and treatment for,
pain in the thoracic and lower spine while on active duty,
including reports of treatment in November 1966 and March
1968. The veteran's induction examination of October 1965
notes a "neck injury from a bicycle accident." On the
veteran's February 1968 separation examination, he checked
"yes" to "recurrent back pain," although the examiner
noted, "back strain cleared."
An April 1969 rating decision denied service connection for
"upper and lower back injuries" after a March 1969
examination revealed full range of motion with no spine
abnormality. That decision was upheld by a Board decision in
May 1970, which denied service connection for "residuals of
back injuries," to the dorsal and lumbar spine stating,
"The back strain in service is not shown to have been other
than acute, leaving no residuals."
In April 2003, the veteran filed a claim to reopen his
original claim for "service connected back injuries with
pinched nerve." A VCAA notification letter was mailed to
the veteran in May 2003, and referenced "back injury with
pinched nerves." The veteran's claim to reopen his case was
denied by the RO in a rating decision of July 2003. The RO
asserted that the veteran's claim for "service connection
for low back strain" was reopened, due to the receipt of new
and material evidence, but denied the claim "because the
evidence does not show that the injury was caused by
service."
The veteran filed a notice of disagreement in July 2003, in
which he sought service connection for "low back strain."
Subsequently, the RO issued a statement of the case denying
service connection for "upper back injury" and "low back
strain" (listed as separate issues). Service connection for
both injuries was denied because "the evidence continues to
show this condition was not incurred in or aggravated by
service."
The veteran filed a formal appeal n March 2004, in which he
made reference to both an upper and lower back injury.
Law and Regulations
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303,
3.304 (2006).
Further, VA regulation provides that, with chronic disease
shown as such in service (or within an applicable presumptive
period under section 3.307) so as to permit a finding of
service connection, subsequent manifestations of the same
chronic disease at any later date, however remote, are
service connected, unless clearly attributable to
intercurrent causes. For the showing of chronic disease in
service there is required a combination of manifestations
sufficient to identify the disease entity, and sufficient
observation to establish chronicity at the time, as
distinguished from merely isolated findings or a diagnosis
including the word "chronic." When the disease identity is
established (leprosy, tuberculosis, multiple sclerosis,
etc.), there is no requirement of an evidentiary showing of
continuity. Continuity of symptomatology is required only
where the condition noted during service (or in the
presumptive period) is not, in fact, shown to be chronic or
where the diagnosis of chronicity may be legitimately
questioned. When the fact of chronicity in service is not
adequately supported, then a showing of continuity after
discharge is required to support the claim. 38 C.F.R. 38
C.F.R. § 3.303(b) (2006).
In addition, service connection may be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d)
(2006).
In order to establish service connection, three elements must
be established. There must be medical evidence of a current
disability; medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. See 38 C.F.R. § 3.303; see also Hickson v. West,
12 Vet. App. 247, 253 (1999).
Prior unappealed decisions are final. However, a claim will
be reopened and the former disposition reviewed if new and
material evidence is presented or secured with respect to the
claim which has been disallowed. 38 U.S.C.A. § 5108;
38 C.F.R. § 3.156(a). The United States Court of Appeals for
Veterans Claims (Court) has held that, when "new and material
evidence" is presented or secured with respect to a
previously and finally disallowed claim, VA must reopen the
claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).
The legal standard of what constitutes "new and material"
evidence was recently amended. This amendment is applicable
in the instant case as the amendment applies prospectively to
claims filed on or after August 29, 2001, and this claim was
so filed. See 38 C.F.R. § 3.156(a). New evidence means
existing evidence not previously submitted to agency
decisionmakers. Material evidence means existing evidence
that, by itself or when considered with previous evidence of
record, relates to an unestablished fact necessary to
substantiate the claim. New and material evidence can be
neither cumulative nor redundant of the evidence of record at
the time of the last prior final denial of the claim sought
to be reopened, and must raise a reasonable possibility of
substantiating the claim. 38 C.F.R. § 3.156(a) (2005).
According to the Court, the pertinent VA law requires that in
order to reopen a previously and finally disallowed claim,
there must be new and material evidence presented or secured
since the time that the claim was finally disallowed on any
basis. Evans v. Brown, 9 Vet. App. 273 (1996). In
considering whether to reopen a claim, VA must assume the
credibility of the aforementioned evidence which supports the
veteran's claim as required by Justus v. Principi, 3 Vet.
App. 510, 513 (1992).
Discussion and Analysis
In reaching a determination on whether the claim should be
reopened, the reason for the prior denial should be
considered. In essence, at the time of the prior denial, the
board concluded that, even though back injuries were noted
during service, the back strain was not "shown to have been
other than acute, leaving no residuals." Moreover, the
Board noted that there was no medical evidence of a chronic
back injury at the time of his claim.
Since the prior final decision, evidence has been added to
the claims file. The pertinent additional evidence of record
consists of:
1. February 1984 diagnosis of lower mid thoracic
hypertrophic and early disc degenerative changes
2. November 1993 diagnosis of a lumbar strain from St.
Edward Mercy Medical Center
3. August 18, 2003 letter from Dodson Avenue Chiropractic
Clinic
The additional evidence is new and material. It includes
competent evidence that cures the prior evidentiary defects.
First, the February 1984 diagnosis of lower mid thoracic
hypertrophic and early disc degenerative changes, as well as
the November 1993 diagnosis of a lumbar strain from St.
Edward Mercy Medical Center, indicates the existence of a
back condition after the veteran's period of active service.
Second, the August 18, 2003 letter from Dodson Avenue
Chiropractic Clinic provides a possible medical nexus, and
chronicity, from the veteran's back injuries in active
service to his recent back problems. The letter states:
[The veteran's] history suggests that he initially
had a problem with his low back and right leg in
1966 where he was stationed at Fort Bragg, North
Carolina. In November 2002, and again in November
2003, [the veteran] had a problem in the same area
and this problem tended to re-occur. This, I
believe that he has had an ongoing problem that has
been exacerbated throughout the last thirty years.
Accordingly, evidence submitted since the Board's May 1970
decision, by itself or when considered with previous evidence
of record, relates to an unestablished fact necessary to
substantiate the claim, and raises a reasonable possibility
of substantiating the claim. New and material evidence has
been received since the Board's May 1970 decision; thus, the
claim is reopened. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. §
3.156.
ORDER
The application to reopen the claim of service connection for
residuals of upper and lower back injuries is granted.
REMAND
Pursuant to VA's duty to assist, VA will provide a medical
examination or obtain a medical opinion based upon a review
of the evidence of record if VA determines it is necessary to
decide the claim. 38 C.F.R. § 3.159(c)(4)(i). A medical
examination or medical opinion may be deemed necessary where
the record contains competent medical evidence of a current
diagnosed disability, establishes that the veteran suffered
an event, injury or disease in service, and indicates that
the claimed disability may be associated with the established
event, injury or disease in service. See Id.
In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court
noted that the third prong of 38 C.F.R. § 3.159(c)(4)(I),
requires that the evidence of record "indicate" that the
claimed disability or symptoms may be associated with
service, establishes a low threshold. See also Locklear v.
Nicholson, No. 02-1814 (U.S. Vet. App. September 19, 20 06).
In light of the absence of a current, thorough VA medical
examination, the Board finds that the veteran should be
afforded a VA examination to determine if any current back
disability (upper or lower) is etiologically related to
service. The examiner should indicate that the claims file
has been reviewed, provide a diagnosis of any upper or lower
back injury (or residuals thereof), and opine as to whether
it is more likely than not, less likely than not, or at least
as likely as not, that any current back disability is related
to service.
The Board also notes that on March 3, 2006, the Court issued
a decision in the consolidated appeal of Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006), which held that the
Veterans Claims Assistance Act (VCAA) notice requirements of
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all
five elements of a service connection claim, including the
degree of disability and the effective date of an award. In
the present appeal, the appellant was not provided with
notice of the type of evidence necessary to establish a
disability rating or effective date for the disability on
appeal. As this case is being remanded, the veteran should
be provided updated VCAA notification which addressed the
directives of Dingess/Hartman.
Accordingly, this matter is REMANDED for the following
actions:
1. The veteran should be provided updated
VCAA notification which addresses
Dingess/Hartman.
2. Schedule the veteran for a VA examination
to determine the nature and etiology of any
current disabilities of the upper and lower
back. The claims file must be made available
to the examiner and the examiner should
indicate in his/her report whether or not the
claims file was reviewed. Any indicated
tests, including X-rays if indicated, should
be accomplished. A rationale for any opinion
expressed should be provided. The examiner
should opine as to whether it is more likely
than not, less likely than not, or at least
as likely as not, that any current thoracic
or lumbar spine disability is related to
service.
3. The AMC should then readjudicate the
claim on appeal in light of all of the
evidence of record. If the issue remains
denied, the veteran should be provided with a
supplemental statement of the case as to the
issue on appeal, and afforded a reasonable
period of time within which to respond
thereto.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
______________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs